As the plane disappeared behind a line of trees, I listened, frozen in place. First came the boom, then the shockwave striking the windowpanes of my apartment, then, a few seconds later, the smoke cloud rising above the tree line. I was sure it was the Pentagon.
I instantly realized three things: 1) the attackers were likely al Qaeda, 2) more attacks were likely in the works, and 3) we were going to respond in ways that would have consequences for decades, perhaps for the duration of the life of the Republic.
With everything that’s happened in this country over the last two years—from George Floyd’s murder and the subsequent nationwide protests, to the ongoing COVID pandemic, to the Capitol Insurrection—the September 11, 2001 attacks no doubt seem to many as remote now as the imperial Japanese government’s attack on Pearl Harbor almost 80 years ago.
The only real reminder has been the bloody, botched U.S. withdrawal from Afghanistan, the so-called “end” to America’s longest war. But in fact, some of the key instruments and tools of that war remain in use today, targeting Americans and those with whom Americans communicate or otherwise interact.
I am, of course, speaking of the post‑9/11 surveillance state.
It started with the infamous and incongruously named PATRIOT Act, enacted just six weeks after the attacks and before any inquiry into how al Qaeda had managed to get past the FBI, CIA and NSA. The new law forced retailers and libraries to tell the FBI what books you’ve read or ordered, your internet service providers (ISPs) to cough up details on your website browsing history, and imposed new financial transaction reporting requirements on your bank or credit union. It was, however, just the public version of digital mass surveillance.
The hidden part of the federal electronic dragnet was NSA’s STELLAR WIND program, which would not come to light until a year after George W. Bush won reelection because the New York Times editorial leadership sat on the story for a year—one of the worst examples of editorial cowardice in the history of American journalism and the antithesis of the Times’ approach to the Pentagon Papers 40 years earlier.
To be fair, NSA hardly has a monopoly on helping create and sustain the new American surveillance state. The Department of Justice has done its part as well.
In December 2008, even as the Bush administration was on its way out, then-Attorney General Michael Mukasey modified the Attorney General’s Guidelines on Domestic FBI Investigations to create a new category of FBI investigation known as an “Assessment”. Prior to Mukasey’s move, initiating an investigation of a person or a domestic group required some kind of criminal predicate. No longer.
By opening an Assessment, an FBI agent could run informants, conduct physical surveillance against a target, and search commercial and government databases (including classified databases) all without supervisor approval for 30 days; including no requirement to go before a judge and get a pesky probable cause-based warrant.
How many Assessments has the FBI done since the start of the Obama presidency to the present?
That’s a question Cato is trying to answer with a Freedom of Information Act (FOIA) lawsuit, but what we know from prior New York Times reporting is that during the first two years of Obama’s tenure, the FBI opened over 80,000 Assessments. Since federal bureaucracies—especially the law enforcement type—never seem to generate less paperwork, it’s entirely plausible that if the FBI simply kept up that 40,000-per-year Assessment rate, it may have conducted over 500,000 investigations of persons and organizations since 2009 without ever having to bother with warrants and judges.
And then, of course, there’s the Department of Homeland Security (DHS).
A completely new, huge bureaucracy cobbled together by stripping existing agencies and departments from one place on the federal organization chart and putting them under one Secretary of Homeland Security, DHS has never foiled a single terrorist attack on the U.S. in the since its creation. It has, however, made air travel a living hell through its appendage known as the Transportation Security Administration (TSA), which now wants to take every traveler’s picture and, through the ridiculous implementation of a de facto national identification card through the REAL ID Act, force you to “present your papers” even if you just want to fly from D.C. to Miami.
None of these changes, programs and intrusions into our lives and business relationships has stopped a single terrorist attack on this country. They have, however, created seemingly unremovable and invasive government surveillance activities and programs that effectively eviscerate the Fourth Amendment—fundamentally altering the very nature of the country itself by empowering the federal government to consider Americans as potential suspects first, citizens and taxpayers a very distant second.
The COVID pandemic will, hopefully, fade in time. The Capitol insurrection presently stands as a radical, albeit solitary, shock to the political fabric of the nation. But the legal tools and above all pervasive, government-abetted mindset of fear and constant threat created in the wake of 9/11 are on the verge of becoming permanent realities of American life. If that happens, we may still be able to call this place the United States of America, but we will no longer be able to call it the Republic of the United States of America.
